ECJ: Food products can only be advertised with ingredients which they contain

The European Court of Justice (ECJ) has strengthened consumer protection. Thus, food products cannot give the impression that they contain certain ingredients if this is not actually the case.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: According to an EU directive, consumers are not allowed to be misled by food product labelling. Information regarding, e.g. consistency, composition, quantity or shelf life cannot be misleading.

The case before the ECJ concerned a children’s tea whose name featured the terms “raspberry” and “vanilla”. These were also depicted on the packaging. The problem was that the tea did not contain any traces of these substances but instead only natural vanilla and raspberry flavourings. This went too far in the eyes of the Bundesverband der Verbraucherzentralen (vzbv) (Federation of German Consumer Organisations). Its lawsuit based on misleading advertising ultimately led to the case before the ECJ and success for consumer protection advocates, as the ECJ ruled that consumers cannot be misled with respect to the ingredients of food products. Consequently, the tea producer was prohibited from making reference to ingredients which are not contained in the product.

The OLG Düsseldorf (Düsseldorf Higher Regional Court) had ruled differently on the matter. It took the view that it was sufficient for the tea to taste like vanilla and raspberries and for the list of ingredients on the packaging to be accurate.

The ECJ made it clear, however, that the appearance, labelling and advertising of food products are not allowed to give the impression that the food product contains certain ingredients if this is not in fact the case. In short: If it’s not in the product, it shouldn’t be on the packaging.

That being said, the divergent case law of the courts also demonstrates how blurred the boundaries can be.

This can make it difficult for businesses to recognise whether they are infringing the so-called Gesetz gegen den unlauteren Wettbewerb (Unfair Competition Act). These kinds of infringements can have serious consequences for businesses. Warning letters, interim injunctions and damages claims are all things which they may be faced with. In order to avoid these types of legal disputes or enforce claims, businesses can seek legal advice from lawyers who are competent in the field of competition law.

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